R v JM - [2013] QChC 11

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v JM [2013] QChC 11

PARTIES:

R

(respondent)

v

JM

(applicant)

FILE NO/S:

No 38 of 2013

PROCEEDING:

Application for Sentence Review

ORIGINATING COURT:

Childrens Court, Brisbane

DELIVERED ON:

6 May 2013 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

6 May 2013

JUDGE:

Rafter SC DCJ

ORDERS:

1.    Set aside the order of the Childrens Court at Brisbane on 28 February 2013 whereby a conviction was recorded.

2.    Instead, order that a conviction not be recorded.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING JUVENILES – SENTENCE REVIEW – where the applicant pleaded guilty to assault occasioning bodily harm in company – where the applicant’s sentence review pursuant to s 118 Youth Justice Act 1992 challenges the order recording a conviction – where the applicant was 16 years old when sentenced – where the applicant has a minor criminal history involving a property offence – where the applicant has not previously had a conviction recorded against him – whether a conviction should not be recorded.

Youth Justice Act 1992 (Qld), ss 118, 122(1), 183 and 184

SOLICITORS:

R. Smith of Legal Aid Queensland for the applicant.

B. Jackson of the Director of Public Prosecutions (Queensland) for the respondent.

HIS HONOUR: This is an application for sentence review pursuant to section 118 of the Youth Justice Act 1992. The review is to be by way of rehearing on the merits.

The applicant is 16 years old. He was 15 when he committed the offence. He was 16 when sentenced in the Childrens Court at Brisbane on 28 February 2013. He had one prior offence on his record. He was sentenced in the Brisbane Childrens Court on the 23 August 2012 for wilful damage by graffiti. He was reprimanded and a conviction was not recorded.

The facts in relation to the offence of assault occasioning bodily harm in company, which is the subject of the review application, are as follows. On 7 September 2012 the complainant was speaking to a person he believed was a female, on Facebook. He arranged to meet her for dinner. The female didn’t attend the dinner. When the complainant was walking home, he received a message, on Facebook, asking him to meet the person at the Banyo railway station or park.

The complainant went to that location. When he walked into the car park at the Banyo railway station, he was confronted by a male person who approached him and pretended to punch him. Another male approached and punched the complainant in the side of the head, causing him to fall to the ground. The complainant then saw other people coming towards him. He was punched and kicked. His chest was stomped on. He became unconscious. He screamed for help. Eventually he was assisted by two passers-by, and was taken to hospital and received treatment for injuries including bruising, abrasions, scratches to the body, face and head.

Police inquiries revealed that a co offender had created a false Facebook account in order…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v JM

Details

AGLC: R v JM [2013] QChC 11
Case: [2013] QChC 11
Decision Date: 6 May 2013 (ex tempore)

CaseChat Overview and Summary

The court was asked to review a decision made by the Children's Court at Brisbane, which had recorded a conviction against a 16-year-old who had pleaded guilty to an offence of assault occasioning bodily harm in company. The applicant was challenging the order recording the conviction on the basis that it was inappropriate to record a conviction against a young person who had a minor criminal history and had not previously had a conviction recorded against them. The court was required to determine whether the conviction should be recorded or not.

The court considered the applicant's age, criminal history, and the nature of the offence. It also considered the principle that the recording of a conviction should be avoided where it would have a detrimental effect on the young person's future. The court held that the applicant's age and criminal history were relevant factors in determining whether a conviction should be recorded. It found that the applicant's minor criminal history and the fact that he had not previously had a conviction recorded against him were significant factors in favour of not recording a conviction. The court also considered the nature of the offence and held that it was not so serious as to require the recording of a conviction.

The court set aside the order of the Children's Court and ordered that a conviction not be recorded. The court held that it was in the best interests of the applicant that a conviction not be recorded, as it would avoid the potential negative consequences of a conviction on his future. The court considered that the principles of sentencing juveniles required that the least severe penalty be imposed, and that a conviction should be avoided where possible.

Orders

Orders of the court

1. Set aside the order of the Childrens Court at Brisbane on 28 February 2013 whereby a conviction was recorded.

2. Instead, order that a conviction not be recorded.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v JM [2013] QChC 11
PARTIES:	R (respondent) v JM (applicant)
FILE NO/S:	No 38 of 2013
PROCEEDING:	Application for Sentence Review
ORIGINATING COURT:	Childrens Court, Brisbane
DELIVERED ON:	6 May 2013 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	6 May 2013
JUDGE:	Rafter SC DCJ
ORDERS:	1. Set aside the order of the Childrens Court at Brisbane on 28 February 2013 whereby a conviction was recorded. 2. Instead, order that a conviction not be recorded.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING JUVENILES – SENTENCE REVIEW – where the applicant pleaded guilty to assault occasioning bodily harm in company – where the applicant’s sentence review pursuant to s 118 Youth Justice Act 1992 challenges the order recording a conviction – where the applicant was 16 years old when sentenced – where the applicant has a minor criminal history involving a property offence – where the applicant has not previously had a conviction recorded against him – whether a conviction should not be recorded. Youth Justice Act 1992 (Qld), ss 118, 122(1), 183 and 184
SOLICITORS:	R. Smith of Legal Aid Queensland for the applicant. B. Jackson of the Director of Public Prosecutions (Queensland) for the respondent.